State ballot measures are becoming the new battleground over abortion access in the wake of the Supreme Court’s decision to overturn Roe v. Wade.
Abortion rights advocates are energized after voters in Kansas earlier this month rejected an attempt to strip abortion protections from the state constitution, the first statewide vote on abortion since the court’s decision in June.
Polls show most Americans support some form of abortion access, and reproductive rights advocates are eager to take the issue directly to the voters.
“When abortion rights are on the line, people stand up and vote to protect them,” said Elizabeth Nash, principal policy associate at the Guttmacher Institute, an abortion rights research group.
An Ipsos poll released Aug. 10 found 7 in 10 Americans, regardless of party affiliation, would support their state using a ballot measure to decide abortion rights at the state level.
In such a hypothetical state-level ballot measure, 54% said they would vote in favor of abortion legality.
In Kansas, nearly 60% voted against the constitutional amendment, stunning anti-abortion activists who had been anticipating a win in the state former President Trump carried by nearly 20 percentage points over President Biden in the 2020 election.
Next up in November are votes in Kentucky, Michigan, California, Vermont and Montana, the most abortion-related ballot initiatives ever to take place in a single year.
Kelly Hall, executive director of the Fairness Project, a progressive group that helps organize ballot measures, said the increasing polarization of state and federal politics is leaving voters with no other options to get their voices heard.
“Ballot measures are not just a tool in the toolbox. I think they will be an increasingly central pathway for moving these conversations forward in states and not just in the abstract … but actually making policy,” Hall said.
Ballot measures are expensive and challenging undertakings, and Hall said they are normally a tool of last resort.
But now, she said there is a major disconnect between extreme politicians and the voters.
“That opens up a space for ballot measures to be not just an option, but often the only option, where there’s no way to get middle-ground common sense policies through the usual mechanisms of lawmaking,” Hall said.
Voters in Kentucky will vote on a measure that’s the most similar to Kansas. Vermont, California and Michigan are moving to enshrine abortion rights in the state constitution, while Montana would mandate medical care for children “born alive” after an abortion.
According to Nash, the anti-abortion movement had a string of successful ballot initiatives in recent years.
In 2020, Louisiana voted to amend the state constitution so there would be no guarantee of abortion protections. Alabama and West Virginia passed similar constitutional amendments in 2018, and Tennessee did so in 2014.
In contrast, this is the first time abortion rights groups have sponsored state ballot measures since 1992. According to data from Ballotpedia, 85% of the abortion related measures on state ballots have been proposed by anti-abortion groups.
Still, groups on both sides of the issue pointed out that there’s only so much that can be gleaned from Kansas.
In a statement after the Kansas ballot measure failed, Kentucky Right to Life Executive Director Addia Wuchner made it clear “we’re not in Kansas!”
Wuchner said the wording of the amendments is similar, but noted Kentucky’s amendment is simpler. The state also already has a near-total abortion ban in place.
“The wording of Kentucky’s Amendment 2 is very clear and concise. It is probably too soon to fully analyze the reason for the Kansas ballot outcome. The wording on the Kansas ballot was longer than our statement, and that may have been a factor,” Wuchner said.
The Supreme Court’s ruling in June to overturn Roe v. Wade is leading to a patchwork of state laws across the country, some of which are being litigated on a constantly changing basis.
“The lack of legal clarity about abortion in Michigan has already caused far too much confusion for women who deserve certainty about their health care,” Michigan Gov. Gretchen Whitmer (D) said in a statement Friday, after a judge issued a preliminary injunction blocking enforcement of the state’s 1931 abortion ban.
“Once, over the course of a single day, abortion was legal in the morning, illegal around lunch time, and legal in the evening. We cannot have this kind of whiplash about something as fundamental as a woman’s right to control her own body,” Whitmer said.
Michigan is one of the next key battleground states, where residents will vote on a ballot measure that would amend the state constitution to protect the right to make choices on reproductive issues such as contraception and abortion.
Nicole Wells Stallworth, executive director of Planned Parenthood Advocates of Michigan, said the organization had been working on the ballot initiative since last fall, but the effort took on new urgency once a draft opinion leaked in May that showed the Supreme Court was going to overturn Roe.
“When the draft leaked opinion came out, we saw a surge in people and individuals coming to our campaign wanting to participate and help in some way,” Stallworth said.
The group saw a similar outpouring of support in June once Roe was officially overturned.
“I think that the overturning of Roe v. Wade has really sparked for people a desire to get involved in the process, and this opportunity in November gives them some form of hope that we can actually save access to abortion in Michigan,” Stallworth said.
Stallworth said politicians have been unable to repeal the abortion ban, so passing a ballot measure would ensure abortion protections won’t be tampered with in the future.